1. Ryan Elder
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    Ryan Elder Contributing Member

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    I'm kind of stuck on how to write this legal scenario logically.

    Discussion in 'Plot Development' started by Ryan Elder, May 6, 2015.

    In my plot I need a cop to enter a house, cause he smells something serious is up. He discovers a kidnapping. However, later when the perpetrator goes to trial, the judge has to let him go, saying that the cop had no probable cause to think any crime was in progress to enter the house on. Therefore, all the evidence found at the house, is inadmissible on grounds of being 'fruit of the poisonous tree', as the term goes.

    This is a very difficult scenario to write though, because I have to come up with a way in which to make the cop, feel compelled to kick down the door pretty much to see if a dangerous felony as in progress, but at the same time, he cannot have legal 'probable cause' in order for it to hold up in court.

    Does anyone have any ideas, on how to write this for the character and the situation? Thanks for the help :)
     
  2. VirtuallyRealistic
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    VirtuallyRealistic Active Member

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    If it is a veteran cop that tends to act rationally then I think him sporadically breaking into a home would be out of character. No matter his suspicions, if he knows what he's doing, he would not break into a home without probably cause; he'd know it wouldn't hold up in court.

    However, if this is a young cop that acts rashly it would be more believable. If it's a kidnapping then I can't think of what would be readily apparent to the cop without knowing more about where he is, and what the situation is. I wouldn't expect someone that is currently part of a kidnapping to do anything incriminating at the same home, unless he's not a very bright criminal. Again, without knowing more about these characters and plot it's hard to help.
     
  3. Ryan Elder
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    Ryan Elder Contributing Member

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    Okay thanks. Well the cop is around 35-ish years old cause I already have an actor in mind, that I worked with before, But perhaps with some make up we can make him look younger. The kidnappers inside are basically a group of terrorists, who plan on filming the kidnapping and making demands. One of them is also a newbie in the group, and he has to pass a test of devotion to get in, by bringing harm to the hostage on camera. However, I want the cop to stop it before the harm is done. The police are aware of the terrorists cause of recent threats with other kidnap victims, so they are on the look out. So this is the scenario basically. I don't have much more of a scenario than that, cause I need to build lack of probable cause around this, and not sure where else to go.
     
  4. GingerCoffee
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    GingerCoffee Web Surfer Girl Contributor

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    Does he find the victim, or just evidence? Because if he finds the victim I doubt many judges would not find probable cause.

    There is a difference between a crime in progress (the victim is there) in which there is a lot more leeway, and searching without cause in which evidence is recovered.
     
  5. Ryan Elder
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    Ryan Elder Contributing Member

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    Okay thanks. Yes he finds the victim, but something happens with the victim later, in which she cannot testify, so they cannot rely on her to supply evident testimony.
     
    Last edited: May 6, 2015
  6. GingerCoffee
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    Doesn't matter, if he found the victim I doubt many judges are going to find no probable cause. Perhaps some other critical evidence might be lost to improper search elsewhere? Say something that ties him to the kidnapping as opposed to the criminal's claim he was an innocent bystander?
     
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  7. Ryan Elder
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    Ryan Elder Contributing Member

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    Okay thanks. Yes this is what makes it very tricky. Basically I just need the crooks to get away with for my story to work. It doesn't necessarily have to be probable cause, but they have to get away with it, after they are caught in the act. That's what makes it very tricky. The best example I can think of Dirty Harry (1971), where Harry broke into the bad guys residence and actually found him at the scene, with his recent stab wound from before, and he found the rifle that was used in his murders. But the perp got off scott free still. If I can write it so it's as plausible as that...?
     
  8. Steerpike
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    Steerpike Felis amatus Supporter Contributor

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    If I recall correctly, probable cause isn't enough to enter a home without a warrant to begin with. Probable cause is the basis for getting a warrant. To enter without the warrant there have to be exigent circumstances to justify it. You could probably draw a distinction there, where the cop should have gotten a warrant, but didn't and the subsequent search of the house was impermissible.
     
  9. GingerCoffee
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    If the police believe a crime is in progress they do not need a warrant. Any other time they would.
     
  10. Steerpike
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    Steerpike Felis amatus Supporter Contributor

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    Yeah, that's what I mean by exigent circumstances. A crime is in progress or there is some imminent threat, or in some cases evidence is being destroyed, etc.
     
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  11. Steerpike
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    Steerpike Felis amatus Supporter Contributor

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    One thing you might do @Ryan Elder, is simply search online for cases where evidence has been thrown out due to lack of probable cause, or lack of a warrant and failure to meet exigent circumstances. Read the facts of those cases and see what happened. Every one of those that makes it to an appeals court is a situation where someone was convicted of a crime and the evidence later found to have been obtained improperly. It could give you some ideas.
     
  12. Ryan Elder
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    Ryan Elder Contributing Member

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    Yep that's what I meant, exigent circumstances. I looked it up and an cop can enter on exigent circumstances. For my story I need a cop to enter on those circumstances, but then later in court, I want the judge to rule that those circumstances were in correct, and the cop only thought they were, but assumed wrong. There are cases like that online, but a lot of details are left out as to how the cop made a mistake. I will research more... thanks.
     
  13. BeastlyBeast
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    BeastlyBeast New Member

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    Hmm... What about something like in Breaking Bad? In the scene, Hank came to Jesse's RV, saw bullet holes, heard voices, and suspected criminal activity. But he was hit with trespassing on private property, breaking and entering, and unlawful search and seizure. On top of that, to find the bullet holes, he performed an unconstitutional search by manipulating the duct tape covering them. Maybe a situation like this could apply. Perhaps the policeman hears the crime occurring in the criminal's private-property home, but doesn't see it. With no visible proof of the incident, and the only 'probable cause' being a small amount of noise, if he were to barge in and hold them up, the perp's lawyer may say private property, no real probable cause as he didn't see the crime being committed, and unlawful search and seizure due to all of the above. That's about all I can think of though. At the very least, if the property was private and there was no concrete proof, a warrant would be necessary.

    All in all, it would take a very specific situation and a perfect storm of loopholes and/or technicalities to convince a judge to let an obvious criminal go, especially if he was holding a hostage. This really is a tricky circumstance. You're trying to write up.
     
  14. Ryan Elder
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    Ryan Elder Contributing Member

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    Okay thanks. Which episode of Breaking Bad was that? I will check it out.
     
  15. Michael Pless
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    Michael Pless Active Member

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    One thing you might want to do, is attend a few court cases - I'm reasonably certain you will be able to, unless the case is being held in camera, or the US equivalent. In camera is the term courts use in Australia for 'nobody's allowed in except the court officials, and the current witness. If something like that does happen, you'll be told, I'm sure. (I'm assuming you're in the US, and therefore operating with an adversarial, rather than an inquisitorial system.) I'm unsure if tv shows area good research base.

    One thing occurred to me, and as a suggestion, I offer the possibility that the case gets thrown out for some reason other than gathering inadmissible evidence. Like if the lawyer manages to trick a prosecution or other witness into saying something that gets the evidence thrown out. The US calls it chain of custody, and early in my (forensic science) career, I was at court and watched and listened as a lawyer spent around 45 minutes questioning a police detective. The questions in a roundabout way hinged on possession of a bag of money, and towards the end of the questions, the lawyer asked, "And the money was placed in the hallway?" The detective was answering "yes" to so many questions, he almost said "yes" to that one, which would have been an admission that COC (continuity in Oz-speak) was broken, because then anyone might have been able to tamper with the bag's contents, like adding a few bills with the accused's fingerprints on them. Whether this alone would have ended the prosecution case is moot, because the witness was able to recover, but it was this level of subtlety that the lawyer operating on.

    We had a rash of mistrials because a lawyer asked the investigating detective "why did you interview my client?" Answer: "He was known to have been involved in such crimes." The lawyer then alleged that the jury was now tainted against his client and the judge agreed.
     
  16. Ryan Elder
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    Ryan Elder Contributing Member

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    Okay thanks. In my script the cops also investigate the client because of his past so that works as well. As far as court cases go, it's a good idea. Thanks.
     

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